The AR-15: a common and usual American choice
The Supreme Court has made clear firearms in common and usual use are constitutional. That has not, however, stopped blue state legislatures, and some courts, from violating the Second Amendment:
On Friday 11-03-23], a three-judge panel of the United States Court of Appeals for the Seventh Circuit overturned an injunction against Illinois’ “assault weapons” ban, deciding that AR-15s are not protected by the Second Amendment.
The preliminary injunction was issued in Barnett v. Raoul by U.S. District Judge Stephen P. McGlynn, a Donald Trump appointee.
McGlynn’s decision was appealed to the Seventh Circuit, where a three-judge panel decided 2 to 1 against the injunction.
The three judges were Ronald Reagan appointee Frank Easterbook, Bill Clinton appointee Diane P. Wood, and Donald Trump appointee Michael P. Brennan.
Easterbrook and Wood constituted the panel majority in overturning the injunction. They noted that Heller (2008) held, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
They went on to note that in Heller, the Supreme Court of the United States found that machine guns were not protected under the Second Amendment because they were not “bearable” arms, and that is “because they can be dedicated exclusively to military use.”
Easterbrook and Wood then focused on similarities they found between AR-15s and M16s, the latter of which can be fired in full-auto or three-round burst modes. They wrote:
The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon. In a decision addressing a ban on bump stocks enacted by the Maryland legislature, another federal court found that bump-stock devices enable “rates of fire between 400 to 800 rounds per minute.”
They also noted that both guns use the same ammunition and “deliver the same kinetic energy.”
Judge Brennan dissented from the majority decision, stressing that the Illinois “assault weapons” ban fails if tested by Bruen (2022) because the ban has no historical precedent in American tradition.
Graphic: author Colt LE6940
Illinois residents would seem to agree with Brennan:
Most owners of assault-style weapons in Illinois appear not to have registered their guns in order to legally keep them. [skip]
The state banned assault-style weapons a year ago, but allowed people to keep the ones they already possessed — provided they register them before Jan. 1, 2024.
Only 1% of people with firearm owners identification cards in the state had registered by the deadline, according to the Illinois State Police. Just over 29,000 people reported nearly 69,000 weapons as of Dec. 31, according to the state police. There are 2.5 million FOID holders in Illinois.
It’s not known how many FOID holders possess guns now banned in Illinois, but gun sellers and others say they believe tens of thousands of legal gun owners were likely turned into scofflaws overnight on New Year’s Day.
Those “scofflaws” appear to have little about which to worry:
Just days after Illinois became the ninth U.S. state to ban assault rifles, the state already hit a roadblock to implementing the law: defiant sheriff’s offices.
At least 74 Illinois sheriff’s departments have publicly vowed to defy elements of a recent gun-control law signed by Gov. J.B. Pritzker, which banned assault weapons, high-capacity magazines and switches. The offices have vowed to not check if weapons are registered with the state or house individuals arrested only for not complying with the law.
Illinois has 102 counties. It’s likely more than 74 counties will not be enforcing the ban. They’re just not making public statements.
The Illinois Sheriffs’ Association issued a statement Wednesday expressing continued opposition to the law. Simultaneously, dozens of sheriff’s offices began to post nearly identical messages promising they would not check for compliance with the law or arrest offenders of the law.
Illinois’ anti-liberty/gun Governor has sworn revenge:
As the number of uncooperative sheriff’s offices increased, Pritzker has made his own vow – to ensure those members of law enforcement who fail to “do their job… won’t be in their job.”
The AR-15 is, under Supreme Court jurisprudence, a “common and usual” firearm choice of Americans. It’s a virtual certainty the Court will, sooner or later, specifically rule such rifles constitutionally protected. They’re the most popular semiautomatic rifle in America, and unlike the majority 7th circuit opinion, are not easily converted to fully automatic fire. The Supreme Court has thus far not granted cert regarding the Illinois ban, likely waiting for conflict with another circuit.
In the military, newly minted officers are taught never to issue an order they know won’t be obeyed. Anti-liberty/gun legislatures, governors and courts would be wise to follow that military wisdom.
Mike McDaniel is a USAF veteran, classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor, retired police officer and high school and college English teacher. His home blog is Stately McDaniel Manor.